In England we have lately had a controversy about Capital Punishment. … My subject is not Capital Punishment in particular, but that theory of punishment in general which the controversy showed to be almost universal among my fellow-countrymen. It may be called the Humanitarian theory. Those who hold it think that it is mild and merciful. In this I believe that they are seriously mistaken. I believe that the “Humanity” which it claims is a dangerous illusion and disguises the possibility of cruelty and injustice without end. I urge a return to the traditional or Retributive theory not solely, not even primarily, in the interests of society, but in the interests of the criminal.
According to the Humanitarian theory, to punish a man because he deserves it, and as much as he deserves, is mere revenge, and, therefore, barbarous and immoral. It is maintained that the only legitimate motives for punishing are the desire to deter others by example or to mend the criminal. When this theory is combined, as frequently happens, with the belief that all crime is more or less pathological, the idea of mending tails off into that of healing or curing and punishment becomes therapeutic. Thus it appears at first sight that we have passed from the harsh and self-righteous notion of giving the wicked their deserts to the charitable and enlightened one of tending the psychologically sick. What could be more amiable? One little point which is taken for granted in this theory needs, however, to be made explicit. The things done to the criminal, even if they are called cures, will be just as compulsory as they were in the old days when we called them punishments. If a tendency to steal can be cured by psychotherapy, the thief will no doubt be forced to undergo treatment. Otherwise, society cannot continue.
My contention is that this doctrine, merciful though it appears, really means that each one of us, from the moment he breaks the law, is deprived of the rights of a human being.
The reason is this. The Humanitarian theory removes from Punishment the concept of Desert. But the concept of Desert is the only connecting link between punishment and justice. It is only as deserved or undeserved that a sentence can be just or unjust. I do not here contend that the question “Is it deserved?” is the only one we can reasonably ask about a punishment. We may very properly ask whether it is likely to deter others and to reform the criminal. But neither of these two last questions is a question about justice. There is no sense in talking about a “just deterrent” or a “just cure”. We demand of a deterrent not whether it is just but whether it will deter. We demand of a cure not whether it is just but whether it succeeds. Thus when we cease to consider what the criminal deserves and consider only what will cure him or deter others, we have tacitly removed him from the sphere of justice altogether; instead of a person, a subject of rights, we now have a mere object, a patient, a “case”.
Later in the essay, he gives some examples of how the Humanitarian theory will make things worse, as in the following case:
The immediate starting point of this article was a letter I read in one of our Leftist weeklies. The author was pleading that a certain sin, now treated by our laws as a crime, should henceforward be treated as a disease. And he complained that under the present system the offender, after a term in gaol, was simply let out to return to his original environment where he would probably relapse. What he complained of was not the shutting up but the letting out. On his remedial view of punishment the offender should, of course, be detained until he was cured. And of course the official straighteners are the only people who can say when that is. The first result of the Humanitarian theory is, therefore, to substitute for a definite sentence (reflecting to some extent the community’s moral judgment on the degree of ill-desert involved) an indefinite sentence terminable only by the word of those experts–and they are not experts in moral theology nor even in the Law of Nature–who inflict it. Which of us, if he stood in the dock, would not prefer to be tried by the old system?
This post will make three points:
(1) The “Humanitarian” theory is basically correct about the purpose of punishment.
(2) C.S. Lewis is right that there are good reasons to talk about justice and about what someone deserves or does not deserve. Such considerations are, as he supposes, essential to a system of justice. Lewis is also right to suppose that many supporters of the Humanitarian theory, despite being factually correct about the purpose of punishment, are mistaken in opposing such talk as cruel and immoral.
(3) Once the Humanitarian theory is corrected in such a way as to incorporate the notion of “just deserts”, Lewis’s objections fail.
Consider the first point, the purpose of punishment. There was already some discussion of this in a previous post. In a sense, everyone already knows that Humanitarians are right about the basic purpose of punishment, including C.S. Lewis. Lewis points out the obvious fact himself: whatever you call them and however you explain them, punishments for crime are compulsory in a society because “otherwise, society cannot continue.” But why cannot society continue without punishment? What supposedly would happen if you did not have any punishments? What would actually happen if a government credibly declared that it would never again punish anything?
What would actually happen, of course, is that this amount to a declaration that the government was dissolving itself, and someone else would take over and establish new crimes and new punishments, either at that same level of generality as the original government, or at more local levels (e.g. perhaps each town would become a city-state.) In any case each of the new governments would still have punishments, so you would not have succeeded in abolishing punishment.
What happens in the imaginary situation where you do succeed, where no one else takes over? This presumably would be a Hobbesian “state of nature,” which is not a society at all. In other words, the situation simply does not count as a society at all, unless certain rules are followed pretty consistently. And those rules will not be followed consistently without punishments. So it is easy to see why punishment exists: to make sure that those rules are followed, generally speaking. Since rules are meant to make some things happen and prevent other things, punishment is simply to make sure that the rules actually function as rules. But this is exactly what the Humanitarian theory says is the purpose of punishment: to make others less likely to break the rules, and to make the one who has already broken the rules less likely to break them in the future.
Thus C.S. Lewis himself is implicitly recognizing that the Humanitarians are basically right about the purpose of punishment, in acknowledging that punishment is necessary for the very existence of society.
Let’s go on to the second point, the idea of just deserts. C.S. Lewis is right that many proponents of Humanitarian view either believe that the idea is absurd, or that if there is such a thing as deserving something, no one can deserve something bad, or that if people can deserve things, this is not really a relevant consideration for a justice system. For example, it appears that Kelsey Piper blogging at The Unit of Caring believes something along these lines; here she has a pretty reasonable post responding to some criticisms analogous to those of C.S. Lewis to the theory.
I will approach this by saying a few things about what a law is in general. St. Thomas defines law: “It is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated.” But let’s drop the careful formulation and the conditions, as necessary as they may be. St. Thomas’s definition is simply a more detailed account of what everyone knows: a law is a rule that people invent for the benefit of a community.
Is there such a thing as an unjust law? In St. Thomas’s account, in a sense yes, and in a sense no. “For the common good” means that the law is beneficial. In that sense, if the law is “unjust,” it is harmful, and thus it is not for the common good. And in that sense it does not satisfy the definition of a law, and so is not a law at all. But obviously ordinary people will call it a law anyway, and in that way it is an unjust law, because it is unsuited to the purpose of a law.
Now here’s the thing. An apparent rule is not really a rule at all unless it tends to make something happen. In the case that we are talking about, namely human law, that generally means that laws require penalties for being broken in order to be laws at all. It is true that in a society with an extremely strong respect for law, it might occasionally be possible to make a law without establishing any specific penalty, and still have that law followed. The community would still need to leave itself the option of establishing a penalty; otherwise it would just be advice rather than a law.
This causes a slight problem. The purpose of a law is to make sure that certain things are done and others avoided, and the reason for penalties is to back up this purpose. But when someone breaks the law, the law has already failed. The very thing the law was meant to prevent has already happened. And what now? Should the person be punished? Why? To prevent the law from being broken? It has already been broken. So we cannot prevent it from being broken. And the thing is, punishment is something bad. So to inflict the punishment now, after the crime has already been committed, seems like just stacking one bad thing on top of another.
At this point the “Retributive” theory of justice will chime in. “We should still inflict the punishment because it is just, and the criminal deserves it.”
This is the appeal of the Humanitarian’s condemnation of the retributive theory. The Retributive theory, the Humanitarian will say, is just asserting that something bad, namely the punishment, in this situation, is something good, by bringing in the idea of “justice.” But this is a contradiction: something bad is bad by definition, and cannot be good.
The reader is perhaps beginning to understand the placement of the previous post. A law is established, with a penalty for being broken, in order to make certain things happen. This is like intending to drink the toxin. But if someone breaks the law, what is the point of inflicting the punishment? And the next morning, what is the point of drinking the toxin in the afternoon, when the money is already received or not? There is a difference of course, because in this case the dilemma only comes up because the law has been broken. We could make the cases more analogous, however, by stipulating in the case of Kavka’s toxin that the rich billionaire offers this deal: “The million will be found in your account, with a probability of 99.99%, if and only if you intend to drink the toxin only if the million is not found in your account (which will happen only in the unlucky 0.01% of cases), and you do not need to drink or intend to drink in the situation where the million is found in your account.” In this situation, the person might well reason thus:
If the morning comes and the million is not in my account, why on earth would I drink the toxin? This deal is super unfair.
Nonetheless, as in the original deal, there is one and only one way to get the million: namely, by planning to drink the toxin in that situation, and by planning not to reconsider, no matter what. As in the case of law, the probability factor that I added means that it is possible not to get the million, although you probably will. But the person who formed this intention will go through with it and drink the toxin, unless they reconsider; and they had the definite intention of not reconsidering.
The situations are now more analogous, but there is still an additional difference, one that makes it even easier to decide to follow the law than to drink the toxin. The only reason to commit to drinking the toxin was to get the million, which, in our current situation, has already failed. But in the case of the law, one purpose was to prevent the criminal from performing a certain action, and that purpose has already failed. But it also has the purpose of preventing them from doing it in the future, and preventing others from doing it. So there additional motivations for carrying out the law.
We can leave the additional difference to the side for now, however. The point would be essentially valid even if you made a law to prevent one particular act, and that act ended up being done. The retributionist would say, “Ok, so applying the punishment at this point will not prevent the thing it was meant to prevent. But it is just, and the criminal deserves it, and we should still inflict it.” And they are right: the whole idea of establishing the the rule included the idea that the punishment would actually be carried out, in this situation. There was a rule against reconsidering the rule, just as the fellow in the situation with the toxin planned not to reconsider their plan.
What is meant when it is said that a punishment is “just,” and that the criminal “deserves it,” then is simply that it is what is required by the rules we have established, and that those rules are reasonable ones.
Someone will object here. It seems that this cannot be true, because some punishments are wicked and unjust even though there were rules establishing them. And it seems that this is because people simply do not deserve those things: so there must be such a thing as “what they deserve,” in itself and independent of any rules. But this is where we must return to the point made above about just and unjust laws. One hears, for example, of cases in which people were sentenced to death for petty theft. We can agree that this is unjust in itself: but this is precisely because the rule, “someone who steals food should be killed,” is not a reasonable rule which will benefit the community. You might have something good in mind for it, namely to prevent stealing, but if you carry out the penalty on even one occasion, you have done more harm than all the stealing put together. The Humanitarians are right that the thing inflicted in a punishment is bad, and remains bad. It does not become something good in that situation. And this is precisely why it needs some real proportion to the crime.
We can analyze the situation in two ways, from the point of view of the State, considered as though a kind of person, and from the point of the view of the person who carries out the law. The State makes a kind of promise to inflict a punishment for some crimes, in such a way as to minimize the total harm of both the crimes and their punishment. Additionally, to some extent it promises not to reconsider this in situation where a crime is actually committed. “To some extent” here is of course essential: such rules are not and should not be absolutely rigid. If the crime is actually committed, the State is in a situation like our person who finds himself without the million and having committed to drink the toxin in that situation: the normal result of the situation will be that the State inflicts the punishment, and the person drinks the toxin, without any additional consideration of motivations or reasons.
From the point of view of the individual, he carries out the sentence “because it is just,” i.e. because it is required by reasonable rules which we have established for the good of the community. And that, i.e. carrying out reasonable laws, is a good thing, even though the material content includes something bad. The moral object of the executioner is the fulfillment of justice, not the killing of a person.
We have perhaps already pointed the way to the last point, namely that with the incorporation of the idea of justice, C.S. Lewis’s criticisms fail. Lewis argues that if the purpose of punishment is medicinal, then it is in principle unlimited: but this is not true even of medicine. No one would take medicine which would cause more harm than the disease, nor would it be acceptable to compel someone else to take such medicine.
More importantly, Lewis’s criticism play off the problems that are caused by believing that one needs to consider at every point, “will the consequences of this particular punishment or action be good or not?” This is not necessary because this is not the way law works, despite the fact that the general purpose is the one supposed. Law only works because to some extent it promises not to reconsider, like our fellow in the case of Kavka’s toxin. Just as you are wrong to focus on whether “drinking the toxin right now will harm me and not benefit me”, so the State would be wrong to focus too much on the particular consequences of carrying out the law right now, as opposed to the general consequences of the general law.
Thus for example Lewis supposes rulers considering the matter in an entirely utilitarian way:
But that is not the worst. If the justification of exemplary punishment is not to be based on desert but solely on its efficacy as a deterrent, it is not absolutely necessary that the man we punish should even have committed the crime. The deterrent effect demands that the public should draw the moral, “If we do such an act we shall suffer like that man.” The punishment of a man actually guilty whom the public think innocent will not have the desired effect; the punishment of a man actually innocent will, provided the public think him guilty. But every modern State has powers which make it easy to fake a trial. When a victim is urgently needed for exemplary purposes and a guilty victim cannot be found, all the purposes of deterrence will be equally served by the punishment (call it “cure” if you prefer) of an innocent victim, provided that the public can be cheated into thinking him guilty. It is no use to ask me why I assume that our rulers will be so wicked.
As said, this is not the way law works. The question will be about which laws are reasonable and beneficial in general, not about whether such and such particular actions are beneficial in particular cases. Consider a proposed law formulated with such an idea in mind:
When the ruling officials believe that it is urgently necessary to deter people from committing a crime, and no one can be found who has actually committed it, the rulers are authorized to deceive the public into believing that an innocent man has committed the crime, and to punish that innocent man.
It should not be necessary to make a long argument that as a general rule, this does not serve the good of a community, regardless of might happen in particular cases. In this way it is quite right to say that this is unjust in itself. This does not, however, establish that “what someone deserves” has any concrete content which is not established by law.
As a sort of footnote to this post, we might note that “deserts” are sometimes extended to natural consequences in much the way “law” is extended to laws of nature, mathematics, or logic. For example, Bryan Caplan distinguishes “deserving” and “undeserving” poor:
I propose to use the same standard to identify the “deserving” and “undeserving” poor. The deserving poor are those who can’t take – and couldn’t have taken – reasonable steps to avoid poverty. The undeserving poor are those who can take – or could have taken – reasonable steps to avoid poverty. Reasonable steps like: Work full-time, even if the best job you can get isn’t fun; spend your money on food and shelter before you get cigarettes or cable t.v.; use contraception if you can’t afford a child. A simple test of “reasonableness”: If you wouldn’t accept an excuse from a friend, you shouldn’t accept it from anyone.
This is rather different from the sense discussed in this post, but you could view it as an extension of it. It is a rule (of mathematics, really) that “if you spend all of your money you will not have any left,” and we probably do not need to spend much effort trying to change this situation, considered in general, even if we might want to change it for an individual.